Law and the “Sharing Economy”:Regulating Online Market Platforms is a new, peer-reviewed collection of papers co-edited by Derek McKee, Finn Makela and myself. The book is the product of a workshop held in January 2017. It is published in late November 2018 by the University of Ottawa press in both print and open access PDF formats.

The title of the book uses scare quotes around ‘Sharing Economy’ because of the deep ambivalence felt about the term amongst contributors to the volume, and the inability to find a suitable alternative. The term ‘sharing economy’ is used by some to suggest an alternative to the market; others have used it to describe activities taking place over large, commercial platforms. And, while some of the platforms use the rhetoric of helping ordinary individuals make ends meet by providing them with the ability to commercialize (‘share’) underutilized resources, the reality is that many of the large platform companies have resulted in other resources finding their way into the ‘sharing economy’. These resources may include, for example, living spaces once rented out on a long term basis that now turn greater profits as short term accommodation. Platform companies have had broad disruptive impacts. Our authors consider their impacts on licensing regimes, alternative dispute resolution, legal normativity, local governance, specific industries, and labour rights. The also consider platform companies’ digital data, their relationship to international trade agreements, and the competition law and policy issues they raise.

The collection of papers in this book offer “a set of diverse lenses through which we can examine both the sharing economy and its broader social impacts, and from which certain key themes emerge” (introduction, p. 5). The book is organized into 5 broad themes:Technologies of Regulation; Regulating Technology; The Space of Regulation – Local to Global; Regulating Markets; and Regulating Labour. The papers reflect a diversity of perspectives. Some explore issues in the context of specific platforms such as Airbnb or Uber; others consider the issues raised by the ‘sharing economy’ more broadly. A Table of Contents for the book is found below.

Last year I attended a terrific workshop at UBC’s Allard School of Law. The workshop was titled ‘Property in the City’, and panelists presented work on a broad range of issues relating to law in the urban environment. A special issue of the UBC Law Review has just been published featuring some of the output of this workshop. The issue contains my own paper (discussed below and available here) that explores skirmishes over access to and use of Airbnb platform data.

Airbnb is a ‘sharing economy’ platform that facilitates the booking of short-term accommodation. The company is premised on the idea that many urban dwellers have excess space – rooms in homes or apartments – or have space they do not use at certain periods of the year (entire homes or apartments while on vacation, for example) – and that a digital marketplace can maximize efficient use of this space by matching those seeking temporary accommodation with those having excess space. The Airbnb web site claims that it “connects people to unique travel experiences at any price point” and at the same time “is the easiest way for people to monetize their extra space and showcase it to an audience of millions.”

This characterization of Airbnb is open to challenge. Several studies, including ones by the Canadian Centre for Policy Alternatives, the City of Vancouver, and the NY State Attorney General suggest that a significant number of units for rent on Airbnb are offered as part of commercial enterprises. The description also belies Airbnb’s disruptive impact. The re-characterization and commodification of ‘surplus’ private spaces neatly evades the regulatory frameworks designed for the marketing of short-term accommodation and leaves licensed short-term accommodation providers complaining that their highly regulated businesses are being undermined by competition from those not bearing the same regulatory burdens. At the same time, many housing advocates and city officials are concerned about the impact of platforms such as Airbnb on the availability and affordability of long-term housing.

These challenges are made more difficult to address by the fact that the data needed to understand the impact of platform companies, along with data about short-term rentals that would otherwise be captured through regulatory processes, are effectively privatized in the hands of Airbnb. Data deficits of this kind pose a challenge to governments, civil society and researchers..

My paper explores the impact of a company such as Airbnb on cities from the perspective of data. I argue that platform-based, short-term rental activities have a fundamental impact on what data are available to municipal governments who struggle to regulate in the public interest, as well as to civil society groups and researchers that attempt to understand urban housing issues. The impacts of platform companies are therefore not just disruptive of incumbent industries; they disrupt planning and regulatory processes by masking activities and creating data deficits. My paper considers some of the currently available solutions to the data deficits, which range from self-help type recourses such as data scraping to entering into data-sharing agreements with the platform companies. Each of these solutions has its limits and drawbacks. I argue that further action may be required by governments to ensure their data needs are adequately met.

Although this paper focuses on Airbnb, it is worth noting that the data deficits discussed in the paper are merely a part of a larger context in which evolving technologies shift control over some kinds of data from public to private hands. Ensuring the ability of governments and civil society to collect, retain, and share data of a sufficient quality to both enable and to enhance governance, transparency, and accountability should be priorities for municipal governments, and should also be supported by law and policy at provincial and federal levels.

On January 24, 2017, Justice Peacock of the Quebec Superior Court certified a class action law suit against Uber Technologies and three of its related companies. The plaintiff, a Quebec taxi driver and permit holder, represents a class of plaintiffs consisting of individuals and companies who are holders of taxi permits and/or licences to drive taxis in designated regions of Quebec since October 28, 2013. That date marks the moment when UberX services became available in Quebec.

The law suit seeks compensation from Uber and its related companies for damages alleged to have been suffered by the plaintiffs as a result of Uber’s unlicensed and unauthorized operations in Quebec. The alleged damages include the loss of revenue suffered by drivers and permit owners, as well as the loss of value of taxi permits. Because the Quebec government authorized a pilot project in Quebec in the fall of 2016 which provides a framework for UberX to be legally deployed in the province, Justice Peacock restricted the period during which damages could be claimed to between October 28, 2013 and October 15, 2016 – the period of Uber’s alleged unauthorized operations in Quebec.

The certification of a class action law suit is far from a decision on the merits of the case. At this early stage, the court’s role is to filter out applications that are entirely without merit. The plaintiff need only show that he or she has an arguable case. Justice Peacock found that the representative plaintiff in this case had met that threshold. He framed the questions to be decided in the lawsuit as whether the defendants, through their activities in Quebec, had violated laws, including those relating to the taxi business. If so, it would be necessary to determine whether they had engaged in unfair competition. If they are found to be at fault, the court would have to determine the appropriate quantum of damages for both drivers and permit owners, both in terms of lost revenue and devaluation of permits.

Justice Peacock noted that, while not determinative of the issues in this case, a judge in another Quebec case had recently found that Uber drivers were acting outside the law by offering taxi services without the proper permits. Justice Peacock found that this earlier decision at least lent some credence to the view that the class plaintiff had an arguable case. He also found that there was sufficient evidence to support the argument that the class had suffered both lost revenues and lost value of their permits. Noting that the court could take judicial notice of the law of supply and demand, he observed that the value of a taxi permit in Quebec would necessarily be devalued if a considerable number of UberX drivers began offering services in competition with taxis.

Uber Technologies, the California-based company responsible for the development of the Uber app argued that it should not be joined as a defendant in the suit since its only connection to the province of Quebec was via the availability of its app in virtual app stores. It argued that this was too tenuous a connection to give rise to the court’s jurisdiction. Further, it argued that its actions in developing an app were not per se illegal. The court dismissed this argument noting that under Quebec law, courts may take jurisdiction over a matter where a fault is committed in Quebec or where harm is caused in that province. In this case, Justice Peacock noted, if the app developed by Uber Technologies was used to facilitate the commission of the delict (tort) of unfair competition in Quebec, then this in and of itself could be actionable.

Although the class action lawsuit by Quebec taxi drivers and permit holders has cleared an initial hurdle, it is a long way from being over. The case will be interesting to watch as municipalities across Canada struggle to address the challenges posed by the rise of ride-sharing services such as UberX and their disruption of incumbent taxi industries.